This panel wasn’t happy about it, and it ultimately didn’t do the monkey any good because he lost for other reasons. But it is certainly notable that, in the Ninth Circuit, “non-human animals enjoy constitutional standing to pursue claims in federal court.”

The monkey, of course, is Naruto, the Indonesian crested macaque who became famous for taking selfies with a photographer’s unattended camera in 2011. The lawsuit was filed by People for the Ethical Treatment of Animals on his behalf (sort of), and presented the question whether a monkey could hold a copyright under U.S. law. When I last mentioned this case, in September 2017, the parties had just announced a settlement and asked the Ninth Circuit not to rule, something PETA most likely wanted because comments at oral argument had made it pretty clear it was going to lose.

But the other day, the Ninth Circuit announced that it was not not going to rule, instead refusing to dismiss the appeal. The result is yesterday’s ruling. And if PETA was concerned it was going to lose, it was right.

Naruto v. Slater (9th Cir. Apr. 23, 2018)

The court held, first, that it “gravely doubt[ed]” PETA could act as Naruto’s “next friend,” which is a weird legal term for the principle that you can (rarely) sue on someone else’s behalf if (1) there’s a good reason they can’t do it themselves and (2) you have “some significant relationship with, and [are] truly dedicated to the best interests of, the petitioner.” Well, Naruto couldn’t do it himself because he’s a monkey, but the court was “concerned with the second requirement” because it believed PETA was dedicated to its own interests, not the monkey’s.

In a long footnote, the court said it wasn’t very “friendly” for PETA to settle with the photographer “after seeing the proverbial writing on the wall at oral argument,” leaving the monkey without a lawyer. In an effort to avoid an unfavorable decision, that is, PETA abandoned its “friend.” “Were he capable of recognizing this abandonment,” the court suggested, he might turn around and sue PETA “for its failure to pursue his interests before its own.” But setting that aside, the court held that if there’s going to be a right to sue as “next friend” on behalf of animals, Congress will have to say so.

But that didn’t end the matter, because a “next friend” isn’t absolutely necessary in cases of this kind, the court held, if an animal can demonstrate standing to sue on its own, consistent with Article III of the Constitution. And it might be able to do that—or at least the Constitution doesn’t say it can’t.

The Naruto panel wasn’t at all happy about this, but said it was bound by the earlier decision in Cetacean Community v. Bush (2004), in which a different panel of the same court held (using a confusing double negative) that “Article III does not compel the conclusion that a statutorily authorized suit in the name of an animal” cannot go forward in federal court. In other words, whether whales, porpoises, and dolphins can sue in federal court is up to Congress—nothing in the Constitution says they can’t sue. The whales, porpoises, and dolphins still lost, because Congress has never conferred standing on them. But it could.

This makes no sense at all to the judges on the Naruto panel, all three of whom think “animals should not be permitted to sue in human courts” as a matter of constitutional law. Animals aren’t capable of presenting an actual “case or controversy,” in other words, as Article III requires. All three of the judges believe that, but two of them think they have no way around the Cetacean case, unless and until the Supreme Court or an en banc panel of the Ninth Circuit puts a harpoon through it. “[A]lthough … we believe Cetacean was wrongly decided, we are bound by it,” the majority concludes, and so for the moment “we cannot escape the proposition that animals have Article III standing to sue.” In the Ninth Circuit, that is.

Again, this didn’t help Naruto, because as the majority goes on to hold, even if he has constitutional standing, which <grumble grumble> the Cetacean case says he does, he doesn’t have statutory standing. “The Copyright Act does not expressly authorize animals to file copyright infringement suits under the statute,” and so like the whales, porpoises, and dolphins, the monkey is out of luck.

The statutory analysis takes maybe three pages, and since the full document is 41 pages long, you get a sense of what the real fight was about. The concurring judge writes separately to say that he thinks there is a way around Cetacean: you can’t be “next friend” of an animal; without a “next friend” the court has no jurisdiction; and that should be the end of it. But again, all three judges are saying the full Ninth Circuit should take up the constitutional issue and reverse Cetacean.

And none of them like PETA one bit.